A better question for jurors
Instead of trying to exclude those with experience of sexual assault, jury selection should identify perpetrators,
Iwas curious to read that, when jury selection was being conducted for the trial of Ghislaine Maxwell, a screening question sought to exclude those who had experienced sexual assault. Prospective jurors were asked: ‘‘Have you or a friend ever been the victim of sexual harassment, sexual abuse, or sexual assault?’’
This is intriguing on at least two counts. Firstly, prevalence statistics for sexual assault and violence suggest there will be few women who will have avoided some form of sexual harassment, if not other forms of sexual victimisation. This is a logical outcome of at least 6000 years of patriarchal history during which men defined women’s and children’s bodies as their property, subject to their wishes and control.
Boys and girls were all at risk of sexual abuse, and for centuries adult women were perceived as remaining childlike and in need of control. The gender inequalities that deprived girls of education and enforced women’s economic dependency on men functioned in tandem with ideologies that objectified and sexualised women’s bodies. Being born female was dangerous.
Results released last year by the World Health Organisation revealed what has been described as ‘‘a global reality in which females are harmed by men repeatedly and in multiple ways because they are females’’.
Specific incidents of harm can be counted, even if experts agree these are invariably underestimates. However, the broader harms from living in a social environment where sexual harassment is pervasive and normalised are harder to quantify.
While not everyone is comfortable terming our society a rape culture, it is hard to argue against the irrefutable body of research evidence for its existence. Recent Ministry of Justice statistics report that 85% of women who are sexually victimised do not consider what happened to them is a crime, with sexual assault accepted as a ‘‘normal’’ part of everyday life.
As anthropologist Peggy Reeves Sanday observed, when rape, far from being a rare and aberrant crime, is highly prevalent and normalised, ‘‘violence against women becomes a script for masculine identity’’.
The second count underlying the court’s attempts to screen jury members is also difficult to comprehend. What does it mean to exclude those with sexual victimisation experiences from cases involving sexualassault victims?
One inference implies the risk of bias, suggesting that if, for example, a woman may share an empathic identification with the defendant’s victims, she will be unable to make impartial decisions.
Acounter-argument could suggest that jury members should be required to have their own sexual assault experiences in order to understand the complex and often counterintuitive behaviours victims may exhibit.
Currently, many misapprehensions continue to prevail that distort or blame victims for their actions before, during, and after sexual assault in ways that contribute to the extreme rarity of perpetrators being held accountable and convicted.
Questioning the appropriateness of women serving on juries in such cases also reflects historical assumptions regarding women’s proneness to hysteria and their supposed inability to engage in rational and unbiased thinking. The perceived rationality and logic of men was long argued as the basis for women’s exclusion from a wide range of positions.
It was only as recently as 1943 in Aotearoa New Zealand that, because of the shortage of available men during the war years, women were ‘‘allowed’’ to sit on a jury at all. I should know – the first woman to do so was my mother, Elaine Kingsford.
High rates of victimisation are paralleled, of course, by high rates of perpetration. For example, self-report studies with college men in the United States showed that more than a third admitted to perpetrating sexually coercive acts against women, figures also believed to be underestimates.
Perhaps prospective jurors in sexualassault trials should be asked: ‘‘Have you or a friend ever been the perpetrator of sexual harassment, sexual abuse, or sexual assault?’’
Such considerations may be necessary if we are to move towards making our criminal justice system more gender-just.